Banicevic v Fisher & Paykel Australia Pty Ltd
[2024] NSWPICMP 420
•28 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Banicevic v Fisher & Paykel Australia Pty Ltd [2024] NSWPICMP 420 |
| APPELLANT: | Jason Banicevic |
| RESPONDENT: | Fisher & Paykel Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Psychiatric Impairment Rating Scale; Medical Assessor did not take apprehended violence order into account when assessing social functioning; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 March 2024 Jason Banicevic lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Surabhi Verma, who issued a Medical Assessment Certificate (MAC) on 7 February 2024.
Mr Banicevic relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Banicevic suffered a psychological injury on 8 October 2021 in the course of his employment with Fisher and Paykel Australia Pty Limited (Fisher and Paykel). It is not necessary for us to describe the circumstances of the injury for the purpose of the appeal.
Using the Psychiatric Impairment Rating Scale (PIRS), the Medical Assessor assessed Mr Banicevic in class 2 for each of self care and personal hygiene, social and recreational activities, travel and social functioning. She assessed him in class 3 for concentration, persistence and pace and class 5 for employability. She converted those assessments to 9% whole person impairment (WPI), from which she deduced one-tenth under s 323 of the 1998 Act, resulting in 8% WPI.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Banicevic to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Banicevic submitted that the Medical Assessor applied incurred criteria and made a demonstrable error in her assessments under the PIRS for self care and personal hygiene, social and recreational activities, travel and social functioning. He said that the Medical Assessor’s own history and the reports of Dr Chow, instructed on his behalf, and Dr Malik, retained for Fisher and Paykel, preponderantly supported assessment in class 3 for self care and personal hygiene. With respect to social and recreational activities, Mr Banicevic said that the Medical Assessor’s assessment was inconsistent with that of other assessors which cast doubt over the accuracy of her assessment.
Mr Banicevic also said that he should be assessed in class 3 for travel because walking to appointments cannot be considered travel except “by the purest definition”. He said that the Medical Assessor failed to give reasons for preferring class 2 over class 3, noting that both Dr Chow and Dr Malik said that travelling caused him anxiety. With respect to social functioning, Mr Banicevic said that the Medical Assessor made no reference to the friendships he has lost and did not take into account her observations which were consistent with the conclusion that he had lost friendships or that his relationships were strained, evidenced by the apprehended violence order (AVO) obtained after his suicide attempt. He said that the Medical Assessor had undue regard to Fisher and Paykal’s s 78 notice. He said that he should be assessed in class 3 under all of the impugned tables.
In reply, Fisher and Paykel submitted that this is merely a case of a difference of opinion and that the Medical Assessor did not make a demonstrable error or apply incorrect criteria. In respect of self care and personal hygiene, Fisher and Paykel submitted that there was evidence of a pattern of improvement in Mr Banicevic’s condition and domestic situation. The MAC showed that the Medical Assessor had considered Mr Banicevic’s statement dated 6 November 2022 and Dr Chow’s report. Fisher and Paykel said that the Medical Assessor had exercised her clinical judgement in the assessment for social and recreational activities. Concerning travel, Fisher and Paykel said that the Medical Assessor considered that Mr Banicevic was able to leave home to attend appointments and activities and that he is able to do so without a support person. Fisher and Paykel said that the Medical Assessor provided a viable path of reasoning to her assessment for social functioning.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1][2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
It is relevant to point out some general principles with respect to assessment under the Guidelines and the PIRS before considering the specific submissions. The Guidelines required that the Medical Assessor make an assessment of Mr Banicevic as he presented on the day of the examination and using her own clinical judgement.[3] The Medical Assessor’s role is not to adopt, or choose between, the assessments made by other examiners on other days,[4] though the MAC template alerted her to explain how her assessment differed from the others in the file.
[3] Guidelines paragraph 1.6 (a) and (b).
[4] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.
Our task as a Medical Appeal Panel is to determine if the Medical Assessor has made a demonstrable error or applied incorrect criteria. We cannot substitute our own view for that of the Medical Assessor unless she made an error within the meaning of s 327(3) of the 1998 Act.
With respect to the MAC as whole, we agree with Mr Banicevic’s submission that the s 78 notice was not relevant to the Medical Assessor’s task but we do not consider that anything turns on the fact that she referred to it in her review of documents.
We set out our determination with respect to each of the relevant PIRS tables below.
Self care and personal hygiene
The Medical Assessor set out the history she obtained:
“He showers once every five days and stays in the same clothes for at least two to three days. He reported that he always used to have his head shaved so that he looked presentable, but he is now not bothered about his appearance and just wears a cap to cover up his head. Mr Banicevic, however, has been able to live independently on his own without any difficulties.
…
On a typical day, he gets up at 10:30 am and then lays in his bed and watches phone. He then takes his medication. He skips breakfast and as he gets up very late and has lunch and dinner. He has a cleaner to come over and clean. He does the dishes and cooks simple things like barbecues.”The Medical Assessor considered Dr Chow’s assessment and said:
“Self-care and personal hygiene: I have noted that Dr Chow has mentioned ‘He is skipping showers and meals and he is showering once a week. He wears the same clothes many days in a row. The house is a mess. He is not doing much house chores. He mostly has takeaway food.’
I agree that he is skipping showers and meals; however, he has been able to live independently without any regular support and as such class 3 or moderate impairment warrants ‘can't live independently without regular support or family member or community nurse visit two to three times per week to ensure minimum level of hygiene and nutrition.’
Mr Banicevic, however, does not have any family member or community nurse visit and has been able to live independently and has been doing that for years. This warrants mild impairment in self-care and personal hygiene and not moderate.”
Dr Chow’s assessment was undertaken about a year before that of the Medical Assessor.
Dr Malik recorded that Mr Banicevic had asked a friend’s wife to come over and help with house chores once a month. Dr Malik assessed Mr Banicevic as having a mild impairment.
The examples in Table 11.1 of the Guidelines focus on a worker’s ability to look after himself and live independently. The history that the Medical Assessor obtained supports her assessment that Mr Banicevic does and can, even though there has been a reduction in his capacity to do so.
Mr Banicevic relied on a statement dated 6 November 2022, just over a year before the referral to the Medical Assessor was made. The description of Mr Banicevic’s self care and personal hygiene in that statement is more limited than that provided to the Medical Assessor which suggests some mild improvement in the period since the statement was prepared. He told the Medical Assessor that he was showering more frequently than set out in the statement and he described cooking and eating food, even though the preparation is simple.
While Mr Banicevic has the assistance of a cleaner, the only information as to the frequency is in Dr Malik’s report, who recorded that the cleaner comes monthly.
The assessment of a mild impairment was open to the Medical Assessor on the basis of the history she obtained.
Social and recreational activities
The Medical Assessor said:
“He reported that he finds hard to go out and he often has to pretend in front of his friends that he is well.”
And:
“Mr Banicevic reported that he used to enjoy playing music, guitar, fishing and playing cricket. He reported that he only plays guitar once every few weeks and has not even once gone out for fishing or played cricket. He has stopped going near the ocean as he gets flashback from the suicide attempt. He has few friends and sees them once a week and they play raffles together and go to the pub.”
Comparing her assessment to that of Dr Chow, the Medical Assessor said:
“Social and recreational activities: I have noted that Dr Chow has marked social and recreational activities as moderate impairment. He has mentioned, ‘he's not engaging in hobbies and activities. He's not engaging socially.’ I have, however, noted that he continues to play guitar once every week and he has few friends and sees them once a week and they go to raffles together and go to pub at least a week. This warrants mild rather than moderate impairment.”
The Medical Assessor also considered Dr Malik’s assessment and said:
“Social and recreational activities: I have noted that Dr Malik has mentioned ‘much reduced withdrawn from friendship groups. He tells me he's not actively engaged in any social or recreational activities.’ Mr Banicevic, however, in my assessment reported that he has few friends and he sees them once a week and they play raffle together and go to the pub, and he was also able to play guitar at least once a week now. This warrants mild impairment in social and recreational activities.”
Mr Banicevic’s submissions turned on alleged inconsistencies in the MAC and with the reports of the independent medical examiners. As noted above, the Medical Assessor was not required to agree with other examiners. We do not agree that there is an inconsistency within the MAC. The Medical Assessor set out the activities that Mr Banicevic used to enjoy and explained that they were reduced.
In Ballas v Department of Education (State of NSW),[5] Bell P and Payne JA said:
“Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.
…
The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities.”
[5] [2020] NSWCA 86 at [96] and [100].
The difference between the examples for class 2 and class 3 in the PIRS focuses on the extent of a worker’s involvement and the ability to attend outings without a support person. It is clear that Mr Banicevic’s social and recreational activities have been curtailed by his injury. However, the history that the Medical Assessor obtained is that he does go out with friends on a regular basis, even though he finds it difficult and “has to pretend he is well”. The history shows that he interacts with others and participates in social activities. It was open to the Medical Assessor to assess Mr Banicevic in class 2 based on the history she obtained and she gave adequate reasons for doing so.
Travel
The Medical Assessor said:
“He said that he is too scared to leave his house and has got his blinds closed.”
And
“He said that he does not have a car as his employer took his car. He said that he is, however, able to go to pubs and do the appointments on his own and at times he walks to these places.
The Medical Assessor assessed a mild impairment in class 2.
The examples in the PIRS show that travel is not limited to driving or other modes of transport and that the table measures a worker’s ability to leave home and go to new places. Class 1 is relevant to someone who “can travel to new environments without supervision” and assessment in class 2 is relevant for a worker who can “travel without a support person, but only in a familiar area”. A worker who “cannot travel away from own residence without support person…” is assessed in class 3.
The Medical Assessor pointed out that Mr Banicevic does not drive because he does not have a car. At the time of Dr Chow’s examination in January 2023, Mr Banicevic drove locally but felt anxious. Dr Chow assessed him in class 2. Dr Malik’s assessment in April 2023 was the same, for almost identical reasons.
The history taken by the Medical Assessor also supported assessment in class 2. Though he finds it difficult, Mr Banicevic does leave his home and is able to go where he needs to go. He also leaves his home for recreation. The fact that he does so on foot is because he does not have a car, not because he cannot drive.
Mr Banicevic submitted that it was incumbent on the Medical Assessor to explain why she chose class 2 when there was more than one conclusion open. We do not agree. The Medical Assessor explained why she assessed Mr Banicevic in class 2. The history she took shows that he can leave his house without a support person and there is no suggestion in the other reports that he has needed a support person to leave his home since the injury. When assessment in class 2 was appropriate and consistent with the assessment made by other examiners, it was not necessary for her to provide further detail explaining why she chose class 2.
It is important to remember that a Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [6] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
Social functioning
[6] At [36].
The Medical Assessor said:
“He reported that he divorced about 15 years back and has not been in a relationship since then. He has two children aged 15 and 12 years who live in Sydney with their mum, but his ex-wife has now placed an AVO against him after this suicide attempt in February 2022. He has some phone contact with his children every one or two weeks and some regular contact with his sisters.”
And:
“He said that his ex-wife has now an AVO against him after his suicide attempt. He has close friends but he does not confide as much as he feels embarrassed. His sister checks up on him regularly.”
Comparing her assessment to that of Dr Chow, the Medical Assessor said:
“Social functioning: I have noted that Dr Chow has mentioned, “He is not seeing friends, and he has lost some friendships. Ex-wife has an AVO against him not allowing him to see children. He has some phone contact with his children every one or two weeks. He has some contact with sisters.
I have noted that his ex-wife has an AVO against him, but he also has friends with whom he meets regularly. His sister is also supportive and checks up on him regularly. There have been no extended periods of separation or domestic violence or spouse’s relatives or community services looking after the children, and hence, this warrants mild impairment in social functioning rather than moderate.”
The “suicide attempt” to which the Medical Assessor referred took place on 8 October 2021, which is accepted by the parties as the date of injury. Mr Banicevic said in his statement that his ex-wife did not allow him to speak to his children because he has “a mental illness”. The fact that there is an AVO in place as a result of an event on the date of injury is a direct known consequence of the injury. Inevitably, it will impact on his relationship with his children, who live with their mother. While we have no evidence as to the conduct which led to the AVO, the fact that the relevant order has been made suggests strained relationships and a possibility or perception of domestic violence. We consider that the Medical Assessor failed to give sufficient weight to the existence of the AVO and the history that it was a result of a suicide attempt. It connotes a moderate impairment in respect of social functioning and warrants assessment in class 3.
Conclusion
When the scores under the PIRS are arranged in ascending order as required by paragraph 11.4 of the Guidelines, they are 2, 2, 2, 3, 3, 5 and the median class is 2.5, rounded to 3. The aggregate score is 17 and under paragraph 11.20 converts to 19% WPI.
There was no appeal with respect to the Medical Assessor’s deduction of one-tenth under s 323 of the 1998 Act. When one-tenth is deducted, the final assessment is 17% WPI.
For these reasons, we have determined that the MAC issued on 7 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6828/23 |
Applicant: | Jason Banicevic |
Respondent: | Fisher & Paykel Australia Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injuries | 8/10/2021 | Chapter 14 | N/A | 19 | 1/10th | 17% |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
5
0